Public Bill Committee

[Sir Roger Gale in the Chair]

Clause 9  - Investigations: enforcement using financial penalties

Amendment proposed (11 December): 44, in clause9, page3, line17,leave out from ‘penalties’ to end of subsection (1).—(Ian Murray.)

Question again proposed, That the amendment be made.

Roger Gale: I remind the Committee that with this we are discussing the following:
Government amendments 2, 3 and 4.
Amendment 45, in clause9,page3,line26,leave out from subsection (c) and insert—
‘(c) that it shall be paid within 28 days.’.
Government amendment 5.
Government amendment 6, in clause 9, page 3, line 34, at end insert—
‘(7) The Secretary of State must make an order—
(a) specifying the amount of the permitted maximum, or
(b) specifying how that amount is to be determined.
(8) The Adjudicator must, within 6 months beginning with the day on which section 1 comes into force, make a recommendation as to the amount that should be specified in the first order under subsection (7) or the method for determining the amount.
(9) Before making a recommendation the Adjudicator must consult any person he or she thinks appropriate.
(10) The Secretary of State—
(a) must have regard to the Adjudicator’s recommendation when making the first order under subsection (7);
(b) may amend or replace an order under subsection (7) only if the Secretary of State has considered whether to do so as part of a review under section 15.
(11) The Adjudicator may not impose a financial penalty in respect of a breach of the Groceries Code that occurs before the first order under subsection (7) comes into force.’.
Amendment (a) to Government amendment 6,after subsection (7) insert—
‘(7A) The Secretary of State must make the order referred to in subsection (7) within 3 months of the Adjudicator making the recommendation referred to in subsection (8).’.
Amendment (b) to Government amendment 6,in subsection (8), leave out ‘or’ and insert ‘and’.
Amendment (c) to Government amendment 6,in subsection (9), leave out ‘must and insert ‘may’.
Amendment (d)to Government amendment 6,in subsection (11), at end add
‘unless the breach started before, and continues after, that date.’.
Amendment 47, in clause12,page4,line22,at end insert—
‘(d) the criteria that the Adjudicator intends to adopt in deciding whether to impose financial penalties under section 9 together with maximum penalty that may be imposed and how the maximum penalty is to be calculated.’.
Government amendments 7, 8 and 9.
Amendment 48, in clause12,page4,line31,leave out from beginning to ‘penalties’ in line 32.
Government amendment 10.
Amendment 57, in clause15,page5,line37,after ‘under’, insert ‘section 9 or’.
Amendment 58, in clause15,page5,line38,leave out ‘that’ and insert ‘the relevant’.
Government amendments 11 and 12.
Amendment 63,page15,line36, leave out schedule 3.
Amendment 64,in schedule 3,page15,line39, leave out ‘if’ and insert—
‘(1) If the Secretary of State thinks that the Adjudicator’s other powers are inadequate; and
(2) has given due regard to the relevant Ministers in the Devolved Administrations.’.
Amendment 65,in schedule 3, page16,line14, at end insert—
(h) consult with the relevant Minister in the Devolved Administrations.’.

Roger Gale: Members will recall that I intended to call Mr Irranca-Davies next. Unfortunately, he is detained for wholly proper reasons on the Floor of the House. I shall therefore call the Minister, and we will take the debate from there. If Mr George is present later, he may wish to speak to his amendments.

Jo Swinson: Thank you, Sir Roger. I am delighted that we can start this morning’s sitting with the issue that we discussed on Tuesday afternoon. It is fair to say that this group of amendments relates to one of the most hotly debated topics of the Bill, which is whether the adjudicator should have the power to impose fines from the start. As I said on Second Reading and as the Business, Innovation and Skills Committee acknowledged in its report, the issue is finely balanced. I continue to believe, as I explained in debates on earlier clauses, that the sanction of requiring a retailer to publish information—or, in layman’s terms, the name-and-shame sanction—will be powerful and, in a great majority of breaches, sufficient.
The Committee will be pleased to hear that I have, however, listened carefully to the arguments made on Second Reading and by stakeholder groups that the ability to fine from the outset would give the adjudicator more teeth. It is only fair to say that there was an overwhelming consensus on Second Reading that fines were necessary. I am delighted to confirm that—as I have already intimated to all those Members of Parliament who raised the issue by electronic means and, indeed, in correspondence—I have listened to the clearly expressed voice of Parliament. As Committee members will see from the amendment paper, the Government have tabled amendments to give the adjudicator the power to fine from the outset.
It is important to reflect on the Second Reading debate. Hon. Members will recall that I said that, in my detailed meetings with a range of campaign groups, they had impressed on me the need for the watchdog to have teeth, and I demonstrated the gift—properly declared—that they had given me. I said that
“the dog remains on my office shelf as a reminder that, should we find that stronger sanctions are needed, the Secretary of State will be able to bring in fines quickly.”
As—[Interruption.] The hon. Member for Ogmore points out that this cuddly dog has no teeth, which is accurate.
On Second Reading, the hon. Member for Edinburgh South continued the animal analogy. He said:
“We are in danger of creating this toothless tiger—I have “tiger”, but it could be a dog, I suppose. Let us imagine an old-fashioned circus act. Where is the fear in a circus clown putting his head into a tiger’s mouth, only to have his neck viced by the tiger’s gums?”—[Official Report, 19 November 2012; Vol. 553, c. 336-342.]
The hon. Gentleman regaled us with that very clear imagery, but I want to add that this tiger—alongside this watchdog—definitely has teeth, as Committee members can see. If this were full-size, it would certainly not be the kind of animal that—

Roger Gale: Order. The phrase “toys and prams” springs to mind. It is awfully difficult for Hansard if we have props. The hon. Lady will either have to go into a considerable amount of description, and I would prefer her not to, or we will have to make do without the props.

Jo Swinson: Thank you, Sir Roger. Perhaps a small amount of description will allow Hansard to make sense of the proceedings: alongside the small cuddly dog, I have produced a small plastic tiger with teeth from a toyshop to illustrate my point.

Ian Murray: Sir Roger, you will be pleased to hear that I do not have a chairful of props. Will the Minister reflect on the fact that, now she has decided to put fines in the Bill, she has pulled the rabbit out of the hat?

Hon. Members: Oh.

Jo Swinson: The Committee’s reaction says it all. If the hon. Gentleman ever finds that his services are not required by the good people of Edinburgh South, a career in comedy may or may not beckon. However, he will be glad to know, as will you, Sir Roger, that I do not actually have a rabbit to show as a prop.
The change demonstrates that the Government have listened and have recognised that there was significant will throughout the House for introducing the power to fine from day one, which is why Government amendments have been tabled. The hon. Gentleman has tabled amendments 44, 47, 48 and 63, with the support of the hon. Member for Ogmore, which would also have the effect of introducing fines. I agree with their spirit, but the Government amendments are drafted in a more robust way to address the question of how the maximum penalty will be set, which is not in the Opposition’s amendments.
I also hope that the hon. Members will agree not to press amendments 64 and 65. Both refer to amending schedule 3, which we will come to in the schedule stand part decision later on. As schedule 3 refers to the process by which the Secretary of State will be able to come forward with the power to fine, the amendments will be superfluous as the power will be inserted here from day one.

Andrew George: Likewise, I do not have a chairful of props to bring out, but I was concerned about the way that the hon. Member for Edinburgh South appeared to be toadying—if the Committee does not mind another animal metaphor—towards the Minister about this proposal. I have tabled a set of amendments, one of which draws attention to the fact that there is no time limit on the Secretary of State bringing forward the order. I hope that she understands the purpose and the spirit behind that amendment.

Jo Swinson: I thank my hon. Friend for his intervention. Depending on the grace of the Chair, he may have the opportunity to move his amendments later today. I do not know whether that will be possible, as it is above my pay grade, but I certainly hope to be able to reassure him on the issue of the timeliness with which the Secretary of State will make the relevant order, because the Government certainly intend to do so in an appropriate amount of time.
I will now discuss the Government amendments. It is important to make it clear that I expect fines to be used as a last resort, only for the most egregious or repeated offences. However, the fact that the adjudicator has the power to impose them will send a strong message to retailers that compliance with the code is not optional. I am confident that the changes will mean that the adjudicator is able to ensure fair play in the food supply chain and keep the industry growing.
There have been reports in some sections of the press—the issue has not been raised in the House—that the amendment would somehow make Britain a less attractive place to do business. I would add to that assertion by saying that almost all business groups other than the large retailers, including the Federation of Small Businesses, the Food and Drink Federation and the National Farmers Union, support the amendment. Indeed, for retailers who comply with the code, which is an existing legal obligation, there will be absolutely no additional burden, as fines could only ever be imposed for a breach of the code. Fines are something that the retailers would have to deal with only if they had broken the law.

Neil Parish: The fact that the retailers are not keen on fines at all makes me absolutely clear that they must be there and that how they will be imposed must be absolutely firm. Although we do not want fines to be imposed—they are the last resort—they have to be there firmly in the Bill, and they have to be large enough to frighten some of the very big retailers; otherwise, they will not be fit for purpose.

Jo Swinson: I thank my hon. Friend for his intervention. He has clearly stated, not only in the Committee, but in previous weeks, his support for the power to fine. He has been working hard on championing that, and I agree with him. I will come to the scale of the fines later.

Ian Murray: The terminology that the Minister used was that fines may make it more difficult or less attractive to come to the UK. However, we must make it clear that fines were in the Bill; it was just that they were not in the Bill from day one. Nothing has really changed, apart from the fact that we will not have the time lag.

Jo Swinson: The hon. Gentleman is quite right. It was not me who said that Britain would be a less attractive place to do business; that was the charge made in some corners of the press. I do not think—[ Interruption. ]

Roger Gale: Order. I am sorry to interrupt the Minister. I cannot allow private conversations on the Back Benches. There are lovely seats outside for people who wish to go and natter, but they cannot do it in here.

Jo Swinson: Thank you, Sir Roger. To pick up on the point about large retailers, I have met their representatives, as I have met campaigners who very much support the groceries code adjudicator and the Bill. In my meeting with retailers, they were confident that they have their code already, that it is working, and that they are discussing matters with suppliers. They were confident that there were no resulting problems, to which I explained that if that really was the case, they would not have anything to fear from the adjudicator, as it may well end up not having much to do. I think all of us in the House would be happy if the adjudicator did not have a lot to do, but let us ensure that we have it in place, so that if things are not as rosy as some would suggest, we are able to put things right.
It is also important to note, as I flagged up on Second Reading, that the introduction of the power to fine has to come with a full right of appeal on the merits of the imposition of a fine, or its amount, if it is then imposed. That is fair, and it is set out, but it would not be the case, if lower sanctions were used, such as the name-and-shame procedure or recommendations, that the full merits right of appeal would apply in those circumstances. The full merits right of appeal would be reserved only for cases where fines were introduced.

Chris Ruane: Will the reporting of the fines and any breaches be done as and when, during the year, and will there be a table at the end of the year to assess who the good guys and bad guys are, as far as supermarkets are concerned?

Jo Swinson: As the hon. Gentleman will know, and we will come to this later, an annual report will be produced where the adjudicator will set out the action it has taken. We expect that when an investigation is concluded where a fine is imposed, it is likely that it would be the subject of significant media attention and it would be brought to the public’s notice. It would be up to the adjudicator, if it decided to do so, to couple recommendations or naming and shaming with publishing the fact of the fine. Those matters would all be for the adjudicator to determine, but the annual report, bringing together all the actions that have been taken, will be available for everybody to look at and make comparisons.
Many hon. Members have an interest in and have raised another aspect of the amendments, including the hon. Member for Corby, who made an intervention on Tuesday afternoon about the level of the fines that should be imposed. We hope that the Committee will accept the Government amendments today, which set out the process for how we can specify the maximum penalty. It is important to set out how it will be determined in either primary or secondary legislation, but simply to insert a maximum figure into the Bill without properly consulting stakeholders would not be appropriate. I do not think that there is much appetite for delaying the Bill for that consultation to be carried out.

Neil Parish: The Minister talks about stakeholders, and they will naturally be the large supermarkets, will they not? When the Government talk to them, they need to be careful that the supermarkets do not try to ensure that there are no fines. They are not going to look forward to fines, so I want to ensure that we negotiate strongly.

Jo Swinson: My hon. Friend makes an important point. I will, I hope, reassure him on two grounds. We do not intend the Government to be part of the consultation process on, or to set, maximum penalties. We hope that the adjudicator will take the lead, because that is the most appropriate way forward. Obviously, there will be parliamentary oversight and the Minister will make the final decision, but the adjudicator will be best placed to carry out the consultation. My hon. Friend rightly said that retailers will be stakeholders, but of course they are not the only stakeholders. Suppliers, others who are involved and have been interested in the parliamentary process, campaigning groups and some third-party organisations will also have a role and can all have input into the process.

Mark Spencer: I seek assurance from the Minister that she expects the adjudicator to conclude that, if a deal goes wrong and a retailer makes a large profit of £2 million by backing out of it, a fine of £500,000 will not motivate them not to do it again.

Jo Swinson: The hon. Gentleman makes a good point. All those factors should be taken into account in the consultation process, when the adjudicator looks at how we could create the appropriate level of fines. I reiterate that I do not think that setting out a maximum in the Bill is sensible, which is why if my hon. Friend the Member for St Ives chooses to press amendment (c), I cannot accept it.

Chris Ruane: The point just made is pertinent. If a supermarket repeatedly breaks the rules, should some kind of escalator ensure that they are well and truly punished? So the supermarkets do not think that they can get away with it on economic grounds, they should be punished where it really hurts—in their pockets—as well as being named and shamed.

Jo Swinson: We discussed escalation on Tuesday. It is important to remember that the adjudicator will be at the centre of all of this and have a large amount of discretion. I am sure that repeat offences and breaches of the code would not go unnoticed. On Tuesday, I read out parts of the explanatory notes that pointed out that those would be the kinds of things that could be taken into account when sanctions were decided. Whoever the groceries adjudicator will be will no doubt follow these Committee proceedings and I am sure they will have great interest in that being something that they can take into account.
On how we should set the maximum penalty, it is important to listen to some words of wisdom. My hon. Friend, the Minister of State, Department for Environment, Food and Rural Affairs, posed a question on Second Reading—
“will the hon. Gentleman outline how a big a fine he thinks would be appropriate to deter inappropriate behaviour on the part of, say, Mr Tesco?”
The hon. Member for Edinburgh South replied:
“That should be in the hands of the adjudicator…The adjudicator should…be given the power to determine the sanction.”—[Official Report, 19 November 2012; Vol. 553, c. 341.]
They are words of wisdom. The adjudicator is best placed to decide the appropriate maximum fine, with, obviously, the parliamentary scrutiny and ultimate ministerial decision that I outlined earlier.

Lucy Powell: May I ask the Minister for clarification about what happens to the fines once they are received? I understand that they will go into a central pot. How will the supplier get compensation should the situation cause a financial loss? How might that come about?

Jo Swinson: It is important to remember the scope of the adjudicator’s remit, which is not about compensation for suppliers; it is about ensuring the code is enforced. Because the code is already legally binding, suppliers have the option— through the courts—of taking a breach of contract claim. That is not an option that is often taken up at the moment; we have talked about the climate of fear, and why that option might not be taken up. But if, for example, after an investigation the groceries code adjudicator found that there had been a breach of the code, and if it had been such a significant breach that the adjudicator actually levied a fine on that basis, the supplier would then have a very strong case in a breach of contract claim, given that the adjudicator—an independent body—had properly investigated and then come to that conclusion. It would, of course, ultimately be for the court to decide.
Therefore, the redress is not something that is done through the groceries code adjudicator, but none the less the very fact that there has been an investigation and a result has been pronounced could be something that would certainly assist with any suppliers who were seeking redress.

Ian Murray: I would like to follow up the intervention by my hon. Friend the Member for Manchester Central, and my point is also slightly related to the intervention by the hon. Member for Sherwood about the fines. I appreciate that a civil case could be sought by a supplier, but we could be in a situation where a supplier could suffer a loss of, say, £750,000—just to create a figure—and the adjudicator recommends a fine of £750,000, because it is within the maximum amount allowable, and then that money ends up on the desk of the Chancellor of the Exchequer. So the supplier would be out of pocket; the retailer would be neutral, because it has made £750,000 through this deal; and the Treasury would be £750,000 better off. I appreciate that the supplier might have to make a civil claim, but would the Minister consider whether or not any compensatory mechanism could be put in place to ensure that the supplier is better off, whereas the retailer would be neutral and the Chancellor would be up by £750,000?

Jo Swinson: I understand the point that the hon. Gentleman is making, but it is important that we retain the role of the groceries code adjudicator, which is to enforce the code. It is not about providing redress; that has to be pursued through alternative means. The fine is a penalty, if it is imposed; it is not something that, in itself, is about redress. It may well be the case, in the example that the hon. Gentleman outlined, that the fine would be less than the supermarket gained from what it had done, but then the redress could be sought through the courts. And then, with the addition of the fine, which is a penalty rather than redress, the supermarket would of course end up worse off overall.

Chris Ruane: On the issue of compensating those who have been done down by the supermarkets, is there any way that anything can be put in the Bill to help those people if they go to court? If we establish a new law and it has been broken, and the farmer or the supplier has lost out financially, is there any way that we can write into legislation something that kind of fast-tracks the case to the court, or gives the farmer or supplier some kind of advantage, not only so that we can do the right thing, but to let the supermarkets know that it will not be easy to get one over on their suppliers?

Jo Swinson: As we mentioned earlier, the reaction from some of the supermarkets has been somewhat negative—certainly about the introduction of the power to fine from day one. I think they have come round to the fact that the groceries code adjudicator will be in place and they need to work well with it. However, the very fact that we are bringing forward this piece of legislation sends a very strong message that they will not be able to get one over on their suppliers.
Clearly, the suppliers have the option to enforce the contract. I do not think that it is the role of Government to get too involved in what is ultimately a contractual relationship between two businesses. But as I say, the very fact that an investigation will be carried out and an adjudication will be made massively strengthens a supplier’s hand in any subsequent litigation that they may wish to take.

Mark Spencer: Does the Minister agree that, frankly, we should have faith in the British justice system, and that any retailer that lost a case with the adjudicator would be quite foolhardy to try to defend a civil case that was taken by a primary producer? There might also be costs awarded against the retailer if it tried to defend that case through the courts.

Jo Swinson: I am not suggesting that it is straightforward. Enforcing contracts is one of the costs of running a business that all suppliers must bear in mind. We are talking about the investigation powers of the adjudicator. It is important to remember that there is also an arbitration power, which we discussed on Tuesday, and suppliers could choose that route if they wanted to.
Suppliers have various options. They will need to take legal advice, and it is not for the Government to be too involved in that, or to give companies legal advice. However, the playing field is much levelled by the existence of the adjudicator’s investigatory powers, which make it possible to examine issues and gather the information necessary to make a judgment.
As to the maximum fine, I have mentioned that the adjudicator will carry out consultation with stakeholders and make a recommendation to the Secretary of State. The Secretary of State will be required to establish the maximum by order, which will help to ensure that fines can be imposed as soon as possible.
I remind the Committee that the amendment to clause 15 allows the Secretary of State to alter the maximum penalty or its method of calculation as a result of the findings of the triennial review. If problems are found with the way the maximum is set it will be possible to make changes by secondary legislation.
The wording that we are using—
“the maximum penalty…or how the maximum penalty is to be calculated”
is being used because we envisage that the Secretary of State could set a specific maximum amount, which would apply as the same fixed maximum for all retailers; but equally if it is found in consultation that a formula is a better approach then that might be adopted. The fine could be x% of a retailer’s groceries turnover or the value of relevant supply agreements. That is a matter to be teased out in the consultation so that we can get the right penalty structure, which will be subject to review at the triennial review if necessary.
If hon. Members are keen to know more, paragraph 92 of the explanatory notes sets the matter out in more detail. The Secretary of State would set the maximum in one of the two ways I have outlined, so I hope that my hon. Friend will not press amendment (b).
As to amendment (d) to amendment 6, a breach of the code that began before the adjudicator was established, but continued afterwards, as we discussed on Tuesday, would still be a valid subject for investigation and possibly sanctions. I hope that my hon. Friend will feel he does not need to press the amendment.
Various hon. Members raised time limits, to which amendment (a) is relevant. I understand the concern about the fact that the Bill does not set out a time limit for the Secretary of State to make the order. Hon. Members will know that it is not common practice to specify time limits for parliamentary processes in primary legislation, simply because they are not entirely in the Government’s control, and that could lead, in an extreme case, to a Secretary of State being in breach of the law through no fault of their own. If, for example, the time limit were to be set at three months, and there happened to be a general election suddenly—let us hope that that does not happen in an unscheduled way—it might be difficult for the Secretary of State to comply technically with the legislation.
I want, however, to reassure the Committee on the basis of our amendment. The word “must” is important and makes it clear that laying the order is not optional. The Secretary of State cannot receive advice from the adjudicator and decide not to lay the order; it must be done within a reasonable time after the receipt of the adjudicator’s recommendation. What is reasonable might vary depending on whether there is a general election in the middle of the time frame. There will be a reasonableness test.

Simon Hart: On that point, who can challenge that? In what circumstances will someone be able to say, “That is an unreasonable amount of time”? What process will an outside interest be able to follow in order to gain some kind of comfort?

Jo Swinson: I know that my hon. Friend is an assiduous parliamentarian, and there will be a great deal of interest in the process of setting up the adjudicator and agreeing fines. If there seems to be an undue delay, I am quite certain that hon. Members will hold the Secretary of State to account. However, if that is not seen to be sufficient—although I wholeheartedly think that hon. Members will be able to hold the Secretary of State to account—there is the option of judicial review, if that is deemed to be necessary.
I assure the Committee that Ministers are absolutely committed to give the adjudicator the power to fine from the outset and that there is no intention to backtrack or delay. I hope that I have explained why, for the reasons that I have outlined, including the period of three months in the Bill is not the right approach. I am happy to give a personal commitment to the Committee that, barring extreme matters outside our control, we will have laid an order within three months of a recommendation from the adjudicator; indeed, I hope that it will be much sooner than three months. I hope that that will satisfy the Committee on that matter.
Amendments 57 and 58 are therefore unnecessary, as they would have effect only if the Secretary of State has not made an order about the maximum level of fine by the time of the first triennial review. Clearly, if we intend to lay an order within three months of the adjudicator’s recommendation, there will be no circumstance in which an order will not have been laid by the time of the first triennial review.
Amendment 45 would require fines to be paid within 28 days. Given that the Bill will already allow the adjudicator to specify the period within which a retailer must pay a penalty, I do not think the amendment is necessary. Such detail is more ideally left to the discretion of the adjudicator. For example, in some cases, they might take the view that a fine should be paid in less than 28 days; equally, they may take into account other factors and say that the period should be longer than 28 days. I understand the sentiment behind the amendment, but I think it is important that the adjudicator is genuinely independent.
On the point made by hon. Members regarding redress, clearly, if an investigation has taken place, that would certainly be helpful to suppliers, not least in boosting their confidence. However, the two processes are separate— the investigation through the groceries code adjudicator, and the particular contractual law. A finding of the investigation will not necessarily be a determination of liability, which will have to be done through a separate claim by the supplier. An investigation may be helpful, but redress is not going to be automatic in any way.
The power to impose financial penalties will strengthen the adjudicator’s ability to enforce the code. I am grateful to hon. Members, campaign groups and other stakeholders who have lobbied hard for the change. It is an important example of how Government can listen. I was struck by a remark made by the hon. Member for Edinburgh East on Tuesday about her experience as an Opposition Member, when she said that this has somewhat restored her faith in the parliamentary process—that something has actually changed. With my five years’ experience as an Opposition Member, I entirely have sympathy with her sentiment; it sometimes can feel like MPs raise issues and they are not listened to. It is important that the Government remain open-minded. If strong arguments are made for which the Committee clearly displays its support, the Government may be prepared to reconsider and make changes. That is what we have done with the Government amendments, and I hope that the Committee will wholeheartedly support them.
 Andrew George  rose—

Roger Gale: Order. I indicated to the hon. Member for St Ives that I would call him next, and I will do so. The Minister has clearly covered a lot of the ground that the hon. Gentleman’s amendments cover, so the Committee may well feel that at least some of his questions have already been answered. I am sure he will tailor his remarks to new matters.

Andrew George: Thank you, Sir Roger. As I said at the time, when I had to leave early on Tuesday afternoon I did not intend any discourtesy to the Committee. Such things are sometimes unavoidable because of the pressures of the parliamentary timetable.
I agree that my hon. Friend the Minister has covered a lot of the ground that the amendments cover and anticipated many of the points that I intended to make, so I have stripped out at least 10 pages from my notes. There is very little left, and I will tailor my remarks accordingly. I will not pass up the opportunity to echo the hon. Members for Edinburgh South and for Corby, among others, in congratulating the Minister on demonstrating that she had listened to and weighed up the debate. Although those of us who are engaged in the discourses and mechanisms of Parliament often feel as though we are throwing ourselves full tilt at a hard and impenetrable brick wall, the Committee’s deliberations have shown—perhaps because of the cross-party consensus that underlies the Bill—that reasonable arguments are listened to and may influence outcomes, as the hon. Member for Manchester Central said, and I welcome that.
I appreciate that we are talking about a fine point of judgment. My hon. Friend the Minister made the point well on Second Reading that there are risks inherent in introducing fines at the first possible stage. If the adjudicator chose to name and shame an offender—the reputational damage option—rather than to impose a fine, the supermarkets might portray that decision as indicating that they had committed a lower order offence, which was less shameful and would cause less reputational damage than might otherwise be the case. That is a fine point of judgment, but my hon. Friend is right to say that the fines are intended to be a last resort if a supermarket has repeatedly failed to comply.
I turn to my amendments, and I will curtail my remarks in view of my hon. Friend’s comments. In my intervention I made it clear that a cynic might interpret the Government amendments as allowing the Secretary of State to delay making an order as set out in Government amendment 6, which would have an effect similar to that of the previous Government’s position. If we did not introduce a measure that would compel the Secretary of State to introduce an order as quickly as possible, we would not be much further forward. The purpose of the Government’s amendment is to tease that point out. The Minister’s remarks were particularly helpful because she put on record that, barring the interruption of a general election or anything else that is outwith the capacity of the Government to avoid, it is her intention introduce an order within a three-month deadline.
Subsection (8) in amendment 6 states,
“The Adjudicator must, within 6 months beginning with the day on which section 1 comes into force, make recommendation as to the amount that should be specified in the order under subsection (7) or the method for determining the amount.”
I believe the Minister needs to address that point because it was not entirely covered by her comments. I press the point because she may wish to reflect on it.
There are two distinct issues here. One is the amount, and the other is the method for determining the amount. Both of those factors are required. The adjudicator must make clear the amount and the method by which it is determined. There may be circumstances, as the Minister intimated, in which the adjudicator may say that it is a matter for calculation. For example, it may be a percentage of turnover. The hon. Member for Sherwood indicated in his telling and important intervention that supermarkets may profit from illegal and improper actions. In those circumstances, the fine should be a calculation rather than a particular amount. Therefore, there will be circumstances in which both of those factors will need to be brought forward. This may be a technical point, and it may be something that can be easily remedied. There is no dispute between us on this point; I am simply making sure that we have covered all the aspects.

Jo Swinson: It may be helpful if I give my hon. Friend some reassurance on that point. These amendments deal with how the maximum penalty will be decided. The adjudicator, as set out in the guidance, will have to publish how they calculate individual fines. There is further protection in the investigation reports, set out in clause 5(2)(c), which states,
“An investigation report must, in particular, specify…the reasons for the findings and any action taken or proposed.”
There would not just be a calculation of the maximum penalty, which will be done through consultation and may be a calculation itself; there will also be guidance on how individual fines will be calculated. On the specific investigation, the report will have to give reasons for the actions that are taken. That should give my hon. Friend the reassurances he seeks.

Andrew George: I am grateful to the Minister for that response. At face value, there appears to be an unnecessary “or” in subsection (8), and I do not think anything would be lost by replacing it with “and.” That is all I am suggesting.
Amendment (c) to amendment 6 is a small point. Subsection (9) states:
“Before making a recommendation the Adjudicator must consult any person he or she thinks appropriate.”
A level of discretion seems to be available to the adjudicator, so applying the word “must” seems unnecessarily dictatorial and is against the general tenor of my approach to the Bill. The more relaxed word “may” is more appropriate, because, ultimately, the word “appropriate” provides discretion. The Government can “must” as much as they like, but the word “appropriate” introduces the necessary discretion.
On amendment (d) to amendment 6, I carefully followed what the Minister said about the circumstances on Tuesday. If a breach had occurred and is continuing to occur when the fines are introduced, my amendment would put the situation beyond doubt. The wording of Government amendment 6 does not put it beyond doubt that breaches that began before the imposition of fines may be considered outwith the time scale of her amendment. I do not think anything would be lost by accepting amendment (d), which would simply clarify the matter and put it beyond doubt. Amendment (d) would in no way diminish Government amendment 6.
I hope my comments, which are shorter than I intended—[Interruption.] I am sure the Committee would love to hear my full peroration, but I will finish there.

Roger Gale: Ordinarily I would now call the hon. Member for Edinburgh South, who moved the lead amendment, to wind up, but under the circumstances it may be helpful if I give the Minister the opportunity to respond briefly to the issues raised by the hon. Member for St Ives.

Jo Swinson: Thank you, Sir Roger. I hope to be able to respond to a couple of points on the specific words “and” or “or,” and “must” or “may.”
Amendment (b) to Government amendment 6 would replace “or” with “and” where the adjudicator makes
“a recommendation as to the amount that should be specified…or the method for determining the amount.”
It may already be possible to include both concepts, but that needs to be up to the adjudicator. As I have suggested, the maximum amount may well be a set figure introduced by the adjudicator, in which case the method for determining the amount would not come into force. My hon. Friend the Member for St Ives has mentioned the word “and,” and we are getting slightly tied up in issues that will be set out in the guidance. Equally, the adjudicator might say that the maximum penalty is the higher of £x or a proportion of turnover. The wording of the Government’s amendment enables that to happen; my hon. Friend’s amendment is a little more restrictive because it suggests that both need to be set out. The adjudicator may want to specify a maximum amount and set out how he will do that, rather than specifying a proportion of turnover. I think that is about the adjudicator’s discretion.
That takes us on to amendment (c) to amendment 6 which would leave out “must” and insert “may”. At this point, my hon. Friend wants more discretion for the adjudicator, so instead of it being that the adjudicator must consult any person that he or she thinks appropriate, they may consult. Although this is slightly on semantics, the difference is that we are clear and firm that, in looking at what the maximum penalty should be, the adjudicator should consult. We want consultation, but it is for the adjudicator to work out how they do that. The word “may” suggests that the adjudicator would consult only if they think it is a good thing to do. We definitely want there to be consultation on the maximum level of fines, which has been a contentious issue.
I hope that, with that explanation, the hon. Gentleman may not be moved to press the amendments.

Ian Murray: We have split this debate over two days, which is quite impressive. We welcome the Minister bringing forward amendments to allow fines to be in the Bill. Indeed, many of the amendments we placed were before the Minister saw the light in this instance, so I do not think that there is need for us to pursue them. In saying that, perhaps we will come back on Report to examine in detail the amendments the Minister brought forward to see whether we may want to make any changes.
The hon. Member for St Ives made some good points and, indeed, the hon. Member for Sherwood and my hon. Friend the Member for Manchester Central stated instances where we may wish to look at how fines are imposed on the retailer. However, as we now have fines in the Bill, and now we are looking only at the technical aspects of the composition and imposition of those fines and the time scales involved in that, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Amendments made: 2, in clause9,page3,line17,leave out subsection (1).
Amendment 3, in clause9,page3,line20,leave out from ‘to’ to end of line 21 and insert—
‘enforce through imposing financial penalties, that means imposing a penalty on the large retailer of an amount not exceeding the amount of the permitted maximum (see subsection (7)).’.
Amendment 4, in clause9,page3,line25,leave out ‘and’.
Amendment 5, in clause9,page3,line26,at end insert ‘; and
() how it must be paid.’.
Amendment 6, in clause9,page3,line34,at end insert—
‘(7) The Secretary of State must make an order—
(a) specifying the amount of the permitted maximum, or
(b) specifying how that amount is to be determined.
(8) The Adjudicator must, within 6 months beginning with the day on which section1 comes into force, make a recommendation as to the amount that should be specified in the first order under subsection (7) or the method for determining the amount.
(9) Before making a recommendation the Adjudicator must consult any person he or she thinks appropriate.
(10) The Secretary of State—
(a) must have regard to the Adjudicator’s recommendation when making the first order under subsection (7);
(b) may amend or replace an order under subsection (7) only if the Secretary of State has considered whether to do so as part of a review under section15.
(11) The Adjudicator may not impose a financial penalty in respect of a breach of the Groceries Code that occurs before the first order under subsection (7) comes into force.’.—(Jo Swinson.)

Clause 9, as amended, ordered to stand part of the Bill.

Schedule 3  - Order conferring power to impose financial penalties

Question proposed, That the schedule be the Third schedule to the Bill.

Roger Gale: It is the Government’s intention to withdraw schedule 3.

Question put and negatived.

Schedule 3 accordingly disagreed to.

Clause 10  - Recovery of investigation costs

Ian Murray: I beg to move amendment 46, in clause10,page4,line10,at end insert—
‘(6) Costs do not form part of financial penalties as described in section 9.’.
There is no doubt that, in the Labour party headquarters, there are people furiously scribbling a press release stating that we have defeated the Government in the Groceries Code Adjudicator Bill Committee. May I congratulate my hon. Friends for allowing that to happen? It must have been the power of our arguments that means that schedule 3 has been removed from the Bill. That was a sensible decision.
The amendment is straightforward. It relates to clause 9 as now amended, but it was tabled before the Minister came forward to put the time scales for fines in the Bill. Now that fines are in the Bill, the amendment is even more important. We seek to ensure that any costs, in terms of investigation, that the adjudicator awards against a large retailer do not form part of any financial penalty levied on that retailer.
We appreciate that fines would be used in the escalator fashion only for serious breaches, but it would be quite unfortunate if a retailer were fined for a considerable breach and then the adjudicator said that the fine should be x—based on the parameters set in the Bill—but it will be reduced to a lesser amount because we are also imposing financial penalties on the retailer. Clearly, costs incurred as a result of any abuse should not form part of the penalties. The amendment is straightforward.

Jo Swinson: I thank the hon. Gentleman for his amendment. I hope that I can reassure him and the Committee that the Bill as it stands already ensures that costs and financial penalties are treated entirely separately. Whether a retailer is required to pay a financial penalty is independent of whether they are required to pay the costs of an investigation. The two items—costs and financial penalties—serve different purposes and need to be assessed separately. For example, it would not be possible for a retailer to offset part of a financial penalty against its liability for costs. I hope that that provides a degree of reassurance, so that the hon. Gentleman does not feel the need to press his amendment to a vote. Another option is for the retailer to be required to pay costs when there is no fine, because the Bill as drafted initially did not include fines from day one. It may well be that retailers are liable to pay costs even though the adjudicator has taken the view that a breach was not sufficiently serious to impose a financial penalty or fine in addition. Those are different matters for the adjudicator to consider and, as such, amendment 46 is unnecessary and I hope that the hon. Gentleman will be reassured and agree.

Ian Murray: I am extremely reassured and, therefore, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 10 ordered to stand part of the Bill.

Clause 11  - Advice

Ian Murray: I beg to move amendment 23, in clause11,page4,line14,after ‘to’, insert ‘the public,’.
We are now moving at breakneck speed through the Bill. The amendment is again straightforward, but it goes to the heart of what the adjudicator is meant to be doing at this point. The clause gives the adjudicator the ability to give advice on the code to suppliers and large retailers. It is right for that to be in the Bill because it allows a two-way dialogue on issues that might arise. If the adjudicator can take on the role of allowing advice to be sought from large retailers and suppliers, that might negate any need for investigations or any confusion with investigations. Under clause 10, there is an ability for suppliers to have costs awarded against them if they bring vexatious claims, some of which claims—if there are any—could be negated by simple advice from the adjudicator’s office to the large retailers and suppliers.
The Opposition also believe that insertion of “the public” into the clause could be useful. As discussed in Committee, the adjudicator and the code are in place to regulate the relationship between the large retailer and the direct primary producer; that relationship, however, has a knock-on effect for consumers. If the relationship breaks down, or there is a power play by the large retailer on the supplier, then ultimately the consumer could lose out, whether on prices, future innovation or even the products available. While the adjudicator referees the code that deals with the relationship, it is important to remember that that relationship should allow for the public to gain some information on the code.

Mark Spencer: I understand that the hon. Gentleman’s motivation is honourable, but how does he think that the public might have responded during the recent dairy crisis? It was high in the headlines and the adjudicator might have received a number of letters during such a period, so what effect would it have had on his ability to deal with the core problems?

Ian Murray: That is a good intervention. The adjudicator might have been swamped during that particular issue, which could have prevented day-to-day issues being dealt with. If during such an incident the adjudicator is swamped by the public’s concerns, whether directly or through Members of Parliament—we were all lobbying pretty heavily on that issue—the adjudicator would be given the opportunity to say, “There is a problem here. Let’s portray what that problem is.” Indeed, giving information to the public might have helped in the campaign to have that issue resolved.
I appreciate that there is a potential for the adjudicator’s office to be swamped in such instances, but the other side of the coin is that the adjudicator being swamped by the public may in fact benefit any investigation that might need to take place.
In fact, some third parties are allowed to make representations to the adjudicators, and some of that information may come directly from the public. It is important that we allow the public to be involved in this particular process. We are not saying that the public should have the ability to lobby the adjudicator: clause 11 seeks to permit the adjudicator to give advice to suppliers or large retailers on matters relating to the code, and we are merely suggesting that he may give such advice to the public as well. That advice could take the form of a public advice campaign or a public awareness campaign on certain issues.

George Eustice: I understand the hon. Gentleman’s intention of trying to get the public engaged, but, given that the adjudicator’s role is primarily to enforce the groceries code, can he explain where he thinks the public can help in terms of determining whether or not the code has been broken?

Ian Murray: I am not sure that our amendment would involve the public in the code as such; it merely proposes that the adjudicator may give advice to the public. Clause 11, as it currently stands—and we are back to the “may” or “must” argument that we had before—says:
“The Adjudicator may give advice on any matter relating to the Groceries Code to suppliers or large retailers.”
Our amendment would mean that the adjudicator could give advice to the public on the workings of the code. That, in our opinion, would be beneficial. If we think back to question of the hon. Member for Sherwood about the dairy issue that arose earlier this year, under this amendment the public might have been able to get some information from the adjudicator directly about that particular issue.

Mark Spencer: That particular issue highlights the problem: the public will have been aware that the price that was being paid to farmers was too low, but of course there was no actual breach of the groceries code, because that was an agreement that had been made between the relevant parties. The public might confuse what is a negotiated price with what is a breach of the code.

Ian Murray: That is exactly why the public should be able to seek advice on such issues: if the adjudicator, when contacted, is able to say to the public, “There has not been a breach of the code in terms of the issues that I deal with; here, therefore, are the other avenues that you might want to go down in order to seek remedy,” that sort of confusion would not arise. Perhaps when we reach clause 13, and, subsequently, the new clauses, we will be able to examine some of the issues of what is included in the code, whether the code is kept live and whether intermediaries are able to be included.

Andy Sawford: This particular issue relates to the point made in a previous sitting by my hon. Friend the Member for Manchester Central about the power of the supermarkets. Supermarkets will be very well able to communicate their position to the public—indeed, they do so very effectively—not just on pricing and offers but on their relations with the adjudicator. We ought to recognise that the adjudicator will want to communicate with the public, as well, and to have that relationship with the public, even though, as the hon. Member for Camborne and Redruth rightly says, that is not the adjudicator’s specific role. We should recognise the power of the supermarkets.

Ian Murray: That is a useful intervention, and fits comfortably with the interventions from other hon. Members about the amendment. We do not want the adjudicator to turn into a one-stop shop for public complaints about supermarkets; we are merely saying that, if there is advice to be given, on a two-way advice street, the ability for the adjudicator to give that advice to the public—and vice versa—should be on the face of the Bill. Can I therefore ask the Minister whether there will be some kind of public website that the adjudicator’s office will run and maintain to give information about what the adjudicator is currently looking at?

Chris Ruane: My hon. Friend the Member for Corby raised a very valid point. The supermarkets have got their fingers on the parliamentary pulse. They employ professional PR people—ComRes is an example—who send questionnaires out to us MPs on a monthly basis, asking, “What do you think about the supermarkets?” There is an imbalance: the intelligence that supermarkets are getting about Parliament—about MPs and what we feel—is far greater than the intelligence that small suppliers and farmers get. Anything that can be done to redress that imbalance will be well received by farmers and suppliers.

Ian Murray: That is a valuable point. I thought that my hon. Friend was going to suggest that we use off-trolley.com as the website. He has disappointed me. Perhaps I have not given him the credit that he deserves for that intervention. It is about that power relationship. Having the public involved in the process makes it more transparent, more accountable and allows that information flow to be far smoother. It may ensure that any issues that arise are dealt with properly and the related information is properly constituted. Some kind of public-facing adjudication website or information flow would be the way to do it. It is a straightforward amendment just to give the public a stakeholder engagement in this process.

Jo Swinson: I very much recognise the spirit of the amendment tabled by the hon. Members for Ogmore and for Edinburgh South. The provision of advice is an important function of the adjudicator which is why clause 11 is in the Bill. Prevention is always better than cure so it is important that the adjudicator can pre-empt some of the problems that might occur and give advice at an early stage. It was suggested earlier in the debate that if claims were brought against suppliers that were deemed to be vexatious, the claimants could be ordered to pay costs. If anyone came to the adjudicator for advice on a potential claim, they would want to discuss that. We all want to avoid vexatious claims. I think there is already enough in the Bill to enable the adjudicator to do that.
The hon. Member for Edinburgh South said that if people have a question and want to know the answer to something, we want the adjudicator to be able to tell them. Of course they will be able to do that. They will be able to do it in a range of different ways. Paragraph 16 of schedule 1 states:
“The Adjudicator may do anything that is calculated to facilitate the carrying out of the Adjudicator’s functions or is conducive or incidental to the carrying out of those functions.”
That would cover the ability to answer questions from members of the public.
It is also important to make this distinction: while educating the public at large can be valuable, they are not the primary audience for the adjudicator. The focus needs to be on business-to-business relationships between suppliers and the large retailers. While I agree with a lot of what has been said about making sure that the public can be informed and can understand the role of the adjudicator—let us not forget that the public have been very involved in lobbying Members of Parliament about this—it is not the primary focus.
My hon. Friend the Member for Sherwood mentioned the pitfalls if it is not sufficiently clear that the key role for the adjudicator relates to business-to-business relationships. He gave the example of the dairy crisis and the deluge of requests that might swamp the adjudicator. In those circumstances we would want the adjudicator to be able to prioritise their resources properly. Those resources are, after all, constrained. There is not a bottomless pit of money. The adjudicator needs to focus on the key areas.
While I agree that being able to answer questions and being able to advise someone who is thinking of making a claim about whether it is worth pursuing or whether it might be deemed to be vexatious is perfectly in order, I was a little bit more worried when the hon. Gentleman talked about launching public awareness campaigns. With a constrained budget that might not be the best use of the adjudicator’s money. I want to see the adjudicator focusing heavily on enforcing the code, so we need to be a little careful about the amendment.
It is also worth reminding the Committee that the adjudicator will be a public officer. They will therefore generally be required to act reasonably if a member of the public requests advice. However, they will obviously operate within constrained resources, and given that the public are not the key audience, it is not necessary to include the words in the amendment. None the less, I give an assurance that paragraph 16 of schedule 1, as well as the general fact that the adjudicator will be a public officer and will have to act reasonably, mean that they will certainly not be prevented from answering questions from members of the public. I hope that that gives the hon. Gentleman some reassurance and that he will withdraw the amendment.

Ian Murray: I appreciate what the Minister says about the adjudicator looking at a purely business-to-business transaction, but it does have a consumer impact, and it is not technically just a purely business-to-business transaction in the sense that there is no consumer involvement whatever. That was the main reason for the amendment.
On public awareness, I did not envisage television adverts like those we used to have in the 1960s and 1970s or that the adjudicator would be dealing with Government public awareness campaigns. I was merely responding to the dairy example raised by the hon. Member for Sherwood. That would have nothing to do with the adjudicator and the code because there was no breach, but if there was that level of public awareness, with people swamping the adjudicator, the adjudicator would be able to advise people that no code had been breached and would not, therefore, have to deal with the issue.

Jo Swinson: It might be helpful to mention a point I forgot to touch on in my remarks. There will be a website, and the public will be able to see various pieces of information, such as investigation reports, the guidance that has been put together and the annual report. That will all be in one place on the website, and I think that that will help to address some of the issues the hon. Gentleman has raised.

Ian Murray: I was just about to push the issue to a vote, but we now have an assurance that there is a website. May I suggest that the Minister considers off-trolley.com? Given that I had also not realised the direct connection with paragraph 16, which gives the adjudicator the power to take up some of these issues, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 11 ordered to stand part of the Bill.

Clause 12  - Guidance

Amendments made: 7, in clause12,page4,line20,leave out ‘and’.
Amendment 8, in clause12,page4,line22,at end insert ‘; and
(d) the criteria that the Adjudicator intends to adopt in deciding the amount of any financial penalty under section 9.’.—(Jo Swinson.)

Andrew George: I beg to move amendment 39, in clause12,page4,line25,at end insert
‘including monitoring compliance with the Groceries Code.’.

Roger Gale: With this it will be convenient to discuss the following:
Amendment 41, in clause14,page5,line12,at end insert—
‘(d) the Adjudicator’s assessment of large retailers’ compliance with the Groceries Code.’.
Amendment 36, title,line2, after ‘Code’, insert ‘monitoring it’.

Andrew George: We are accelerating the pace, and it is my intention to keep that up. These three amendments are intended to address the adjudicator’s role in monitoring not only the operation of the code but the context in which it operates.
In my parliamentary career, I have never been able to fathom why amendments are debated in the order they are, and not necessarily in what I would consider a logical, clause-by-clause order, or why those relating to one clause are debated with another clause. Equally, my amendment 36 is found right at the end of the amendment paper, even though it refers to the very first line of the Bill—indeed, the title. That aside, all three amendments, taken together, address the adjudicator’s monitoring role.
As I said in earlier debates about the adjudicator’s purpose, it is a great pity that the supermarkets had not embraced the introduction of an adjudicator, because it is in the interests of consumers and, ultimately, of the supermarkets. Had the supermarkets embraced the adjudicator, they could have seen that role develop into that of a fair trade regulator. The adjudicator would produce annual reports and could ultimately give charter marks that stood outside the stores to reassure customers that the supermarkets were fair trade retailers.
I do not mean “fair trade” in the sense that supermarkets put at the end of some aisles a sign for fair trade items or place them in certain locations, and point a finger at themselves and say, “We are good boys and girls, really”. It could be an ethos that would unpin the entire actions of retailers, something that they could extol and which would independently be verified by the groceries code adjudicator or the fair trade regulator, as I would like the role to develop.
That is the context in which the amendments should be considered. The role of the groceries code adjudicator would be not only to encourage compliance and enforce the grocery code, but to monitor compliance with the code. Under the Bill, at present, the role is only to encourage and enforce the code, and the Secretary of State will monitor how the adjudicator will bring about compliance with the grocery supply code of practice.
We are missing a step, because I want the adjudicator to be able to state their view of whether the retailers are complying with the code and whether that has led to a reduction in the transfer of risk and unexpected costs, the term used by the Competition Commission, and justifies the setting up the code and the role of adjudicator. That role is not required of the adjudicator, yet the Secretary of State will review how well the grocery code adjudicator has operated. We are missing a step, which is to review the retailers’ general compliance with the code. I tabled the amendments for that purpose, because it would be sensible of the Government to accept them as they would empower the adjudicator to have that over-arching brief.

Jo Swinson: I thank my hon. Friend for tabling the amendments and for enabling further discussion of monitoring compliance with the code. The amendments would explicitly extend the adjudicator’s role to monitoring compliance, but he will be aware that that is already the responsibility of the Office of Fair Trading under section 162 of the Enterprise Act 2002 and article 10 of the Groceries (Supply Chain Practices) Market Investigation Order 2009. They provide an explicit and statutory duty on the OFT, and to insert into the Bill a parallel duty on the adjudicator would create duplication and would not be the best use of public resources.
Under the Bill, the role of the groceries code adjudicator will be to enforce the groceries code and encourage compliance with it. In the course of taking such action, the adjudicator will do many things, including carrying out arbitrations and investigations, giving advice, publishing guidance and producing an annual report. Indirectly, such activities will provide information about compliance with the code. When the adjudicator undertakes an investigation, the findings will obviously determine whether a particular retailer is breaching the code. The annual report will bring together in published form and in detail all the arbitrations and investigations that have been carried out. The adjudicator will report on various aspects of how the code is being complied with.
I direct the Committee to paragraph 56 of the explanatory notes, which states:
“Each annual report should therefore contain information which is useful to the Office of Fair Trading in monitoring the Groceries Supply Order and the Secretary of State in reviewing the Adjudicator under clause 15, as well as to users of the Groceries Code generally.”
Information collected by the adjudicator will be helpful, but we should not duplicate a requirement of monitoring compliance with the code. That is a power for the OFT. It is important to keep those two powers separate, although, as I said, there is information that may be useful to the OFT.

Andrew George: That clarification is helpful. However, it raises the question of the nature of the relationship between the adjudicator and the OFT. I am not sure how the OFT could undertake the monitoring role without having private conversations with the adjudicator. The adjudicator will not only have the published material but will have to provide a lot of private material to the OFT. In effect, it will be ghost-writing the OFT’s monitoring report.

Jo Swinson: My hon. Friend mentions the information that the OFT would require to monitor the code properly. Of course, it already has a great deal of power to require information. It has a general duty to monitor the operation of the order and consider whether that needs to be changed. Article 7 of the 2009 order requires retailers to provide the OFT with information to monitor and review the operation of the order, so the OFT already has powers to get that information. All I am saying is that what the adjudicator can provide will be additional and helpful. I am sure that in the light of published investigations, the OFT will take an interest in progress and in the findings that have been made as it undertakes and fulfils that general duty. The OFT has the ability and the powers to do that, and it is assisted by the annual report. If the groceries code adjudicator has information such as my hon. Friend mentions in addition to the published reports, the Enterprise Act 2002 allows it to pass further information to the OFT. I hope that reassures him.
The triennial review provides another point at which the adjudicator’s effectiveness at enforcement of the code will be considered. That will also provide information about how the code is complied with. I come back to my main point, which is that the responsibility lies with the OFT. The adjudicator can certainly assist in some ways, but it is best not to duplicate that responsibility, which would cause confusion and not be the best use of resources.

Ian Murray: My point is related not directly to the amendments but to the clause itself. To avoid duplication, will the Minister consider removing that power from the OFT and giving it to the adjudicator? Has the Minister or the Department considered that move as the referee comes in?

Jo Swinson: It is appropriate for the OFT to retain that power because it is well placed and resourced to do so. The groceries code adjudicator that we are setting up will have a narrow set of functions. The competition authorities are best placed to enforce and monitor compliance with the orders that they have brought into being. I think there has been a lot of agreement in the House on that principle, including from the previous Government. The point has been made and, if nothing else, considered in this short debate in Committee, but the Government’s firm view is that it is right for the OFT to have the remedies, as it is a strong organisation.
The competition landscape is obviously changing, and the Competition Commission and the OFT will be merged into the Competition and Markets Authority, but that is the right place for the compliance functions to lie. That is not to undermine or belittle the important role that the adjudicator will have in encouraging retailers to meet their legal obligations under the code by using its investigative powers. I hope that I have been able to reassure my hon. Friend the Member for St Ives, and that he will withdraw the amendment and we can move on.

Andrew George: I am grateful to my hon. Friend for her comments on my amendments. Clearly, I must reacquaint myself with section 162 of the Enterprise Act 2002 in order properly to reflect on her comments. I am grateful to her for offering to give it to me while I am speaking, but I will reflect on it later. However, on whether the adjudicator or the OFT undertakes the monitoring role, frankly, I do not mind who does it. It could be the adjudicator, the OFT or Father Christmas, as long as that function is undertaken by someone.
I am afraid I am going to say something critical of the OFT. My main concern is that those who have been involved in the pursuit of what we have always argued is necessary regulation of the sector and the supply chain have been monumentally disappointed by the reaction of the OFT over the past decade. It is only as a result of the phenomenally professional work undertaken by the Competition Commission, not the OFT, that we are where we are today. Quite frankly, if it was left to the OFT, we would still be light years away from the sort of sensible measure we have before us. Nevertheless, I hope that the reformed OFT with the adjudicator embedded in it will recognise the import of its role, that that relationship works well and that the monitoring role will draw regulation in the direction that I indicated earlier.
Finally, the Minister mentioned article 7 of the 2009 order. In fact, the order refers only to the supply of information by retailers to the OFT, not to the adjudicator—or to the ombudsman, as it would have been at that time. Nevertheless, it has been useful to advance the point. I hope that the Government will consider it further and ensure in their conversations with the OFT and the adjudicator that the important monitoring role will be recognised and acted on in the way I have described. I therefore beg to ask leave to withdraw the amendment.

Amendment,byleave,withdrawn.

Amendmentmade:9, in clause 12, page 4, line 31, leave out subsection (4).—(JoSwinson.)

Ordered, That further consideration be now adjourned.— (StephenCrabb.)
12.59 pm

AdjournedtillthisdayatTwoo’clock.